Texas Mold Law: Tenant Rights, Disclosure & Insurance

Does Texas license mold work?

YES - Texas is one of the few states with a dedicated mold licensing regime. Texas Occupations Code Chapter 1958 ('Mold Assessors and Remediators') creates two distinct license categories: mold assessment and mold remediation. Sec. 1958.001 defines 'mold assessment' as the 'inspection, investigation, or survey of a dwelling or other structure' and related activities, and 'mold remediation' as the 'removal, cleaning, sanitizing, demolition, or other treatment' of mold-contaminated matter. AGENCY: the Texas Department of Licensing and Regulation (TDLR), acting through its executive director, administers and enforces the chapter 'to protect the public from the adverse health effects of mold' (Sec. 1958.051). Other duties: Sec. 1958.154 requires the licensee to give the owner a certificate of mold damage remediation within ten days of completion certifying the work was done per the work plan; Sec. 1958.156 requires remediators to retain project documentation, including before-and-after photographs, for three years. The implementing rules are commonly cited as 16 Texas Administrative Code Chapter 78 - UNVERIFIED in this research (the SOS TAC viewer has moved).

Habitability: what landlords must provide

Statutory duty to repair rather than a broad common-law implied warranty. Tex. Prop. Code Sec. 92.052 requires the landlord to make 'a diligent effort to repair or remedy a condition' where (1) the tenant gives notice specifying the condition, (2) the tenant is not delinquent in rent, and (3) the condition 'materially affects the physical health or safety of an ordinary tenant' (or involves failure to maintain hot water at a minimum of 120 degrees F). No duty where the tenant caused the damage beyond normal wear and tear. MOLD IS NOT NAMED - the word 'mold' does not appear anywhere in Property Code Chapter 92. Mold claims must be framed as a condition materially affecting physical health or safety. (Tex. Prop. Code Sec. 92.052)

Notice and repair timeline

7-day rebuttable presumption. Tex. Prop. Code Sec. 92.056 requires written notice to the landlord and, after a reasonable time has passed, a subsequent written notice, before the landlord is liable; there is 'a rebuttable presumption that seven days is a reasonable time' to repair, with severity of the condition, availability of materials, and availability of labor all considered. Sec. 92.0562 lets the landlord file a sworn affidavit for delay - up to 15 days for parts/materials shortages and up to 30 days following a natural disaster - with successive affidavits capped so that total delay cannot exceed six months.

Tenant remedies

On landlord liability under Tex. Prop. Code Sec. 92.056(e), the tenant may: (1) terminate the lease, with a pro rata refund of rent and return of the security deposit (electing termination forecloses the other remedies); (2) repair-and-deduct under Sec. 92.0561 - the tenant may have the condition repaired and deduct the cost from rent, CAPPED at 'one month's rent or $500, whichever is greater,' with the repair performed by a licensed/listed contractor, in compliance with building codes, and with bills or receipts furnished to the landlord; or (3) pursue judicial remedies (injunction, damages, civil penalty, attorney's fees). There is no general statutory rent-withholding remedy in Texas - withholding rent outside Sec. 92.0561 exposes the tenant to eviction. Constructive eviction remains a common-law doctrine - unverified here.

Selling a home: mold disclosure

Yes by statute, but MOLD IS NOT A LISTED ITEM. Tex. Prop. Code Sec. 5.008 prescribes the Seller's Disclosure of Property Condition notice. The statutory checklist DOES include 'Water Damage Not Due to a Flood Event,' 'Hazardous or Toxic Waste,' and 'Asbestos Components,' and the flood section separately asks about 'Previous water penetration into a structure on the property due to a natural flood event' and 'Previous flooding due to a failure or breach of a reservoir or a controlled or emergency release of water from a reservoir.' The form does NOT contain a mold line item. Known mold would typically be disclosed under the water-damage item or the catch-all for conditions materially affecting health or safety. Any independent common-law duty to disclose known material defects is unverified here. (Tex. Prop. Code Sec. 5.008)

Deadlines to bring a claim

Both personal injury and property damage: 2 YEARS. Tex. Civ. Prac. & Rem. Code Sec. 16.003(a): 'a person must bring suit for trespass for injury to the estate or to the property of another, conversion of personal property, taking or detaining the personal property of another, personal injury, forcible entry and detainer, and forcible detainer not later than two years after the day the cause of action accrues.' Sec. 16.003(b) applies the same two years to injury resulting in death, accruing on the date of death.

Insurance treatment of mold

Partially verified. The Texas Department of Insurance PRESCRIBES residential policy forms - the Texas Supreme Court in Fiess v. State Farm Lloyds noted the Homeowners Form B (HO-B) at issue was 'prescribed by the Texas Department of Insurance effective July 8, 1992, and revised January 1, 1996.' In Fiess (Tex. Aug. 31, 2006, No. 04-1104) the Court held that mold damage is NOT covered as an ensuing loss under that form's ensuing-loss clause, reasoning the clause 'is not an exception to the excluded perils it modifies but rather an assurance that covered losses remain covered even when they ensue from an excluded peril' - a decisive pro-insurer ruling on mold coverage in Texas. Justice Medina dissented, arguing the language was ambiguous and should be construed in favor of the insured. UNVERIFIED: the specific TDI rule, bulletin or Insurance Code provision governing mold remediation coverage caps, mandatory offers of mold coverage, or the post-2002 mold endorsements - no TDI page could be retrieved (tdi.texas.gov blocked robots.txt). Do not cite a rule number for the Texas mold coverage caps without checking TDI directly.

Leading cases

VERIFIED: Fiess v. State Farm Lloyds, Supreme Court of Texas, No. 04-1104, decided August 31, 2006 (certified question from the Fifth Circuit) - mold damage not covered as an ensuing loss under the TDI-prescribed HO-B homeowners form; majority plus dissent by Justice Medina. Commonly cited as 202 S.W.3d 744 (Tex. 2006), but the S.W.3d parallel cite was NOT independently confirmed here. UNVERIFIED: Allison v. Fire Insurance Exchange (the Ballard/Dripping Springs mold verdict case, Tex. App. - Austin 2002) is widely regarded as the other leading Texas mold case, but neither its citation nor its holding was confirmed from a primary source in this research - do not cite it without checking.

Sources: [1] [2] [3] [4] [5]